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From Israel: “So, Is It Annexation, or What?!”

June 18, 2019

I can tell you, dear readers, that it is not annexation.  Before you panic, allow me to explain.  My reasoning is quite positive:

Last week, in an interview in the NYTimes, US Ambassador to Israel David Friedman said:

Under certain circumstances, I think Israel has the right to retain some, but unlikely all, of the West Bank.”

Credit: Raziel Shevach

This is a very mild, if enormously imprecise statement.  Under what circumstances does he claim Israel would have that right?  How much of Judea and Samaria (which he refers to as “the West Bank”) is “some”?  And precisely what does he mean by “retain”?

Friedman did not use the term “unilateral, so we might ask if he was referring to a “peace” agreement, or if he was merely suggesting that in the almost certain absence of any progress on negotiations Israel might hold on to the land in an open-ended status quo situation.

In any event, his was not a radical stance.  It should be noted that the US government did not breathe a word of rebuke with regard to what Friedman said, nor is there any reason to believe his comments diverge from US policy. America has long recognized that in any “peace” agreement Israel would most likely retain major settlement blocs.  

This position was actually stipulated in Security Council Resolution 242, passed after the Six Day War, which does not say Israel must withdraw from all territories acquired in the war.  (More on this below.)

Then, in 2004, there was the letter written by President George W. Bush to Israeli Prime Minister Ariel Sharon, which spoke of “new realities on the ground [i.e., in Judea and Samaria] including already existing major Israeli population centers.”  

http://www.jcpa.org/brief/brief3-21.htm

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Yesterday, at the Jerusalem Post Conference, Special Envoy Jason Greenblatt indicated, with regard to Friedman’s statement, that “I support his comment.  I will let David’s comment stand for itself.” This was not negative, but neither was it particularly elucidating.

Credit: Marc Israel Sellem

That simple statement by David Friedman, however, has sparked a frenzy of comments and predictions by journalists and analysts here in Israel, and abroad, many of whom have jumped too quickly to certain conclusions – and worse, in some cases to the wrong conclusions.

There is a broad tendency to use the terms “application of sovereignty” and “annexation” interchangeably.  But they are most definitely not interchangeable. And here we come to my opening comment, that it is not annexation.

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Annexing means adding on or incorporating a new region into a political entity – a region that was not previously part of that political entity.

As Israel has legal – as well as historical and moral – rights to Judea and Samaria, this is not possible: we cannot “add on” what we already have a right to.  

Credit: avivahwerner

As to the historical and moral rights, they are clear: Judea and Samaria are the national, religious heritage of the Jewish people.

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But here I want to look at our legal rights, which are founded on the Mandate for Palestine of 1922:  

[] In 1917, British Foreign Minister Lord Alfred Balfour sent a letter to Lionel Walter Rothschild to be brought to the Zionist Federation. This letter, which became known as the Balfour Declaration, endorsed the establishment of a Jewish national homeland in Palestine.

[] In 1922, the League of Nations unanimously approved the British Mandate for Palestine.  Preceded by the San Remo Conference, it is an article of international law that has never been superseded.

It called for a national homeland for the Jews in Palestine, with Britain, the Mandatory, to “encourage close settlement on the land.”

[] There is a doctrine of customary international law known as Uti Possidetis Juris. It states that emerging states presumptively inherit their pre-independence administrative boundaries. 

This means Israel has the borders of the Mandate, which immediately preceded it.  That border is along Jordan on the east and includes Judea and Samaria as part of Israel.

[] When the United Nations succeeded the defunct League of Nations in 1945, it incorporated into its Charter Article 80, which sustained the Trusteeship System.  This effectively ensured that the terms of the Mandate for Palestine would continue to be fully implemented.

[] In 1947, the General Assembly passed Resolution 181, which called for the division of Palestine into a Jewish and an Arab state.  This is without any standing in international law — first, because General Assembly resolutions are only recommendations, and then because the Arab nations voted against it.

For more on this see “The Legal Invalidity of Resolution 181”:

https://legalgroundscampaign.org/wp-content/uploads/2017/09/Legal-Grounds-The-Hague.pdf

[] On May 14, 1948, when Israel declared independence, the armies of Egypt, Syria, Jordan, Lebanon and Iraq attacked.  When the War of Independence was over in 1949, armistice agreements were drawn up.

An armistice line was established between Israel and Jordan; it became known as the Green Line. The Palestinian Arabs claim this is their “legitimate border” with Israel.  However, at the insistence of Jordan, the agreement specified that this line was an armistice demarcation line established for military purposes only and would not prejudice ultimate political settlement between the parties.

Palestinian Arabs played no role in this scenario, and there was no mention of a “Palestinian state” in the agreement.

Jordan’s occupation of Judea and Samaria from 1949 until 1967 – which occurred as a result of an offensive war in 1948-49 – was illegal, recognized by only two nations in the world.

[] The 1949 armistice – and the armistice line it established – was breached by Jordan in 1967 when it attacked Israel. In legal terms, it then no longer existed.

In the course of fighting a defensive war, Israel moved into Judea and Samaria and eastern Jerusalem. (There is a legal distinction between land acquired in an offensive war, and land acquired in a defensive military action.) Israel was liberating these areas from an illegal occupation.  Israel could not be an “occupier,” as there was no legitimate sovereign in the land before Israel moved in.

[] UN Security Council Resolution 242 (mentioned above), passed after the war, did not call for Israel to withdraw from all territories acquired in the course of the war, but rather from “territories”: by design it did not say “the” territories.

Its recognition of the right of every state in the area to “live in peace within secure and recognized boundaries free from threats or acts of force” is understood to reject the requirement that Israel return to the former 1949 armistice line.

In referring to “recognized boundaries” it is calling for negotiations.  To Israel’s east, those negotiations were understood to be between Israel and Jordan.  There was no reference to a Palestinian people or a Palestinian state and in no way was it implied that Israel would negotiate with the Palestinian people in determining her eastern border.

(See http://jcpa.org/requirements-for-defensible-borders/security_council_resolution_242/ for more.)

[] In 1994, a peace treaty between Israel and Jordan was signed. The treaty states explicitly that “the international boundary between Israel and Jordan is delimited with reference to the boundary definition under the Mandate.”  This is an article of international law, as the boundary was agreed to by the parties on either side of the line.

[] In 1993, the first Oslo Accord was signed between Israel and the PLO.  It established an interim self-government, the Palestinian Authority.

The stated goal of the Accord was a “permanent status” agreement to be achieved via bilateral negotiations.  It says nothing about a Palestinian state.  It was understood that the issue of Israel “settlements” in Judea and Samaria would be resolved in the final negotiations—there was no prohibition on Israeli building.

[] In 1995 Oslo II was signed.  It established Areas A (under full PA administration), B (PA civil administration and Israeli military administration), and C (under full Israeli administration) in Judea and Samaria. There was no restriction on Israeli building in area C.

The PA was to be an interim entity of self-government with a final understanding to be achieved via negotiations. Yet those negotiations have never taken place in good faith because of the maximalist and unreasonable demands, totally lacking in a spirit of compromise, put forth by the PLO.

The Oslo Accords have been materially breached by the PA.  In any event, there are legal experts who question its validity as an item of law, as the PA is not a sovereign country.

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So, indeed, it is not annexation, even if the headline above the fold in the JPost today read:

“Greenblatt: I support Friedman’s comments on partial annexation.”  Greenblatt didn’t say this. It is an erroneous extrapolation and simply sets the Post readers up for confusion.

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What we can do, and should do, is apply sovereignty over Judea and Samaria, or some major part of it (Area C – where all Jewish communities of Judea and Samaria exist).

To apply sovereignty is to apply dominion or supreme authority or jurisdiction over a region. It is to be regretted that Israel did not apply sovereignty over Judea and Samaria in 1967 – we never claimed fully what we had a right to, but what is past, is past.  Now we are approaching the time to rectify this: all areas to which sovereignty has been applied would be fully part of Israel proper in every sense.

It is difficult to describe in brief just how convoluted are the laws that apply in Judea and Samaria today.  For centuries, this area was part of the Ottoman Empire, governed by Turkish law. During Mandate times, British law ruled, in part, layered over the Turkish rule. Then Jordan illegally occupied and brought in its laws, some of which still stand today.  Judea and Samaria are not governed by Israeli civil law (this requires sovereignty).  Rather, the area is administered by the Civil Administration working under the Ministry of Defense.

Many of the problems we encounter, in terms, for example, of Arab claims to land, can be attributed to the layers of rules. (Or, better put perhaps, they make the most of the layers of laws to stake their claims.)  

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Lastly, there is one other concept that is relevant here:  The application of Israeli law to Israeli citizens who live in Judea and Samaria.  This is not the same as sovereignty, as it applies to persons, citizens, and not to land. It is what our prime minister referred to not long ago and has since reiterated.

https://www.timesofisrael.com/liveblog_entry/netanyahu-again-specifies-that-hell-apply-israeli-law-at-all-settlements/

Credit: Amos Ben Gershom/GPO

This is an important step, erasing not only legal but psychological differentiations between different areas of residence.  

As Israelis who live in communities in Judea and Samaria are under the aegis of the Civil Administration of the Ministry of Defense, they are not subject in all respects to the same laws as Israelis who live within Israel proper (although there has been an attempt in recent years to draft parallel laws).  This applies to certain judicial processes as well.

There is a question, then, of equal civil rights that needs to be addressed.  A simple example:  An Israeli living in a community in Judea or Samaria should be protected by the same laws governing handicapped-accessibility as someone living in Israel proper.  Establishment of legal equity would be a positive development and hopefully can be accomplished without undue delay.

See a recent statement by Strategic Affairs Minister Gilad Erdan (Likud) on this:

http://www.israelnationalnews.com/News/News.aspx/264665

(Unfortunately, here too there was journalistic confusion, with reports referring erroneously to Netanyahu’s announcement that he was about to “annex” the settlements.)

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Above I refer to Jason Greenblatt and the comment he made regarding the Friedman statement.  But he said a good deal more as well:

He indicated that the “peace plan” – the political aspect – may not be unveiled until November, after the Israeli government has been formed. He believes that Trump, who is very involved in the process, will continue even though November ushers in the US election year.

In the meantime, the Bahrain conference is moving ahead for next week. Egypt, Morocco and Jordan have most recently confirmed attendance, along with Saudi Arabia, Qatar, UAE and the UN.

I had read that the king of Jordan had great unease about this, because of fear that his country would become the “Palestinian State.” Apparently there was reassurance on this score from Greenblatt, as well as reassurance that Jordan would continue its “special role” on the Temple Mount.  Oh joy.

Greenblatt explained that “The Bahrain Summit is aimed to show what could happen to the Palestinian economy if there’s a peace agreement.  We understand completely that there is no economic vision that will work without a peace agreement.  But we also want to make the point that there will be no peace agreement that works without an economic vision. We’re trying to break the cycle of aid and dependency…”

https://www.timesofisrael.com/us-envoy-greenblatt-backs-friedman-on-israels-right-to-annex-some-settlements/

Good luck on that.

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Israel was invited, after a delay, and will be participating in the Bahrain Summit.  According to Foreign Minister Yisrael Katz (Likud), also speaking at the JPost Conference, Israel “has a key role to play in this process.”

 Credit: Wikipedia

It had been broadly expected that Moshe Kahlan, Finance Minister, would be attending; other finance ministers will be present.

Did Katz get his signals mixed, or was he sold a bill of goods?  The latest news, coming from a US official speaking on condition of anonymity, was that no Israeli government officials would be invited, only business persons, because the event is to be kept apolitical.

But perhaps, as Katz also said that Israel can “participate in these efforts and contribute in different fields of interest, among them modern technology, energy, innovation and even transportation,” he did get it.

No representative of the PA will be attending, but, said David Friedman recently, some major PA business persons will be present, “lured by the prospects of meeting with some of the largest sovereign wealth funds in the world, when the topic of the discussion is limited to giving money to the Palestinians. I know firsthand they want to come.”

https://www.jpost.com/Breaking-News/White-House-Wont-invite-Israelis-to-Bahrain-to-keep-summit-apolitical-592835

We can understand what this is about.  It is hoped by the American teams that those PA business persons, hungry for the possibilities, will push the PA to make a political deal.

Is this Alice in Wonderland?  Stay tuned.

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© Arlene Kushner. This material is produced by independent journalist Arlene Kushner. Permission is granted for it to be reproduced only with proper attribution.

 

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